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Lawyers Get Creative for Climate Change

May 28, 2008

The field of climate change litigation is in its infancy. As a legal basis for their cases, many of the attorneys who are increasingly flocking to this line of work have been trying to use established legal tools, including the Clean Air Act, the National Environmental Policy Act, and the Endangered Species Act. However, they've met with limited success.

A few attorneys are beginning to float other ideas. One of these, University of Oregon law professor Mary Wood, has recently begun advocating a concept that seems to be gaining popularity. The main premise of her idea is that the atmosphere is a resource that is held in the public trust, and that governments at all levels (federal, state, local), as well as individuals and businesses, are responsible for protecting that trust asset. She also has laid out a series of proposals for monitoring and enforcing application of this "atmospheric trust" principle. Wood has been teaching about various public trust issues for many years, and thinks it's a logical step to extend the ancient concept of the public trust to the atmosphere.

She says there have been about 100 environmental cases involving the basic public trust principle, addressing issues such as streambeds, wildlife, and tidal lands. However, none quite fit with the atmospheric trust concept she's advocating. She and Michael Blumm, a law professor at Lewis and Clark College in Oregon, are assembling a legal treatise that will document the various environmental public trust cases. Its publication date is uncertain, but a very short version of this case law should be posted on Wood's Web site and that of the Climate Legacy Initiative in the next month or two.

Carla Wise reported in the May 12, 2008, issue of High Country News that about 30 lawyers formed a committee after hearing about Wood's concept at the annual 2008 Public Interest Environmental Law Conference in Eugene, OR, with tentative plans to file lawsuits nationwide based on the atmospheric trust idea ("ClimateRevolutionary: Creating a Legal Framework for Saving Our Planet"; subscription required). Wood declined in mid-May to reveal the names of these lawyers, and as an academic, she isn't pursuing litigation. However, a number of legal organizations and law schools are pursuing or addressing climate change litigation, and it could be worthwhile to ask if they are exploring this idea. Among possible candidates are:

In addition, 13 law firms, many with numerous offices around the country, were mentioned in a March 28, 2007, TipSheet, and could be worth contacting to get their take on this approach.

Wood says that some attorneys have already begun to use this public trust idea in cases involving oil and gas drilling. She may be able to point you to related documents once they become public. Otherwise, keep your eyes open for such arguments if you're covering oil and gas cases.

An entirely different tactic is being tried by three veteran attorneys, two of whom were once on opposite sides of the courtroom. Stephen Susman, Steve Berman, and Matthew Pawa are trying to apply the same "conspiracy" principle that worked well in tobacco industry litigation. In this case, addressing what they say is climate change-related decimation of the coast of an Alaskan village, named Kivalina, they are accusing two dozen companies that are major sources of greenhouse gas emissions of conspiring for years to suppress the disclosure of the science that makes the link between human-generated greenhouse gases and climate change. Their legal approach, and details of the case, are discussed in Stephan Faris's June 2008 Atlantic Monthly article.